OP-ED: Firm without Fairness – The dangerous drift of the Return Regulation

By Catherine Warin and Anna Smolinska

On 26 March, MEPs will vote on the mandate to enter into interinstitutional negotiations regarding the future ‘Return Regulation’.

There is a consensus on the need to modernise the EU’s legal framework for removing unauthorised third country nationals from the territory of the Member States. But the European Commission’s proposal, the Council of the EU’s position and the report adopted by the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs (LIBE) have fuelled acute concerns from international bodies, experts and civil society. The authors of this article share many of them and fear the introduction of a legal framework that will benefit neither the Member States nor the EU institutions.

The Return Regulation is taking us towards more uncertainty and instability – the opposite of the sustainable return policy that Europe needs.

Indeed, there are serious doubts about the practicability and effectiveness of the proposal. In addition, the proposed rules would most likely be challenged as non-compliant with international and EU human rights framework. They will hurt the image and credibility of the EU and its Member States as regards their commitment to human rights.

Therefore, we urge MEPs to give careful consideration to whether initiating trilogues is appropriate.

When the Commission tabled its proposal, the willingness to be “firm and fair” was an important part of the narrative. Safeguards (linked to “fairness”) were presented as counterbalancing the firm side, i.e. punitive aspects of the text. However, as the Parliament and the Council both went in the “firm” direction, one wonders what remains from the “fair side”.

Significantly, the LIBE report is accompanied by three minority positions which indicate strong differences within the committee. Preliminary to the vote, reactions by international organisations and NGOs (e.g. UN, PICUM and Amnesty International) multiplied to unanimously highlight the risks associated with the direction undertaken by EU legislators.

In its position of March 2025, the Council of Bars and Law Societies of Europe (CCBE) pointed to similar issues and indicated key safeguards that should be present in the future Regulation.

First, ensuring early, easy and effective access to legal assistance in return procedures. Although it might be seen as a more expensive option at first sight, the presence of a lawyer throughout the procedure decreases the likelihood of further litigation. Yet, both the Council’s general approach and the LIBE report weaken the right to legal assistance.

Second, ensuring effective remedy, including automatic suspensive effect of appeals in principle, and with limited exceptions (security, etc.). Individuals need to be allowed to remain on the territory until a court has ruled on their appeal against a return decision: otherwise, the non-refoulement principle might be violated, i.e. people would be sent to countries where they risk death or torture. Unfortunately, the co-legislators are now proposing a framework that will not effectively prevent such violations. For instance, they remove the possibility for courts to verify non-refoulement of their own.

Third, guaranteeing that detention lasts as short as possible and only as long as removal arrangements are in progress, and securing the right to an effective remedy in detention. The latter presupposes guarantees in detention facilities: free access for lawyers, provision of information about the right to contact lawyers, time and space for the provision of legal assistance in confidentiality. Unfortunately, both LIBE and the Council suggest further limits on the access to legal assistance for detainees.

Finally, regarding the so-called “return hubs” to be established in third countries, minimum standards shall be clear (e.g. legally binding agreement as a basis, access to legal advice and representation in the hubs) to avoid that returnees are subjected to inhuman treatment or the risk of chain refoulement.

Yet, the current proposals are a major source of legal uncertainty, and they dramatically increase the risks of human rights violations in return processes.

To conclude, it is regrettable that even the Commission’s shy attempt to put in place a “fair and firm approach” will probably be buried as the balance shifts towards a tough return policy. The future Regulation will not be human rights compliant if it is deprived of procedural and fundamental safeguards. Respect of Article 47 of the Charter of Fundamental Rights of the EU and Article 13 of the European Convention on Human Rights, and the requirements established by the Court of Justice of the EU and the European Court of Human Rights should guide the EU co-legislators in this regard.

The proposals currently on the table are steering us far away from the very foundations of our Union – the core values of human rights and dignity enshrined in Article 2 of the EU Treaty (TEU). They could also make it impossible for Member States to comply with their international law obligations.

Echoing a recent address by the Council of Europe Commissioner for Human Rights, Michael O’Flaherty, we believe that the EU should “be firm above all on the principle of universality of human rights”.

Catherine Warin is Chair of the Council of Bars and Law Societies of Europe (CCBE) Migration Committee and Anna Smolinska is Senior Legal Advisor to the CCBE Migration Committee.

This op-ed was originally published by Agence Europe on 24 March.